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tv   America and the Magna Carta  CSPAN  January 18, 2015 4:19pm-5:53pm EST

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i would like to become a certified public accountant. that means i am to keep track of profits and losses. i am not sure that i know enough yet to say what this adds up to. i know there were at least nine. in little rock to her is a slow bridge taking shape over that chasm of intolerance and ignorance. a bridge that will be built at us and our children. before it is children we want -- before it is finished, we will have our problems, but if little rock taught us nothing more, it taught us that our problems can make us better. much better.
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♪ [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2015] >> you are watching american history tv. all weekend, every weekend on c-span3. to join the conversation, like us on facebook. >> coming up next, several law professors explore the origins of the magna carta and the influence of the british document on the creation of the american bill of rights. the professors spoke at the library of congress, where 1215 copy of the magna carta is temporarily on display. king john originally signed the document under pressure from his barons. revolutionaries looked to the rights guaranteed by the magna carta as they rebelled against
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the british crown. this is 90 minutes. >> good morning. i have proposed to cover three things in my brief opening remarks this morning. why me, why now, why are you here? the relevance of the magna carta today. from an early age growing up in america it was good king john the lionheart, packaging john black land, robin hood and his merry men, not forgetting friar tuck, will scarlet and all of them. henry viii, the virgin queen, shakespeare, costuming, architecture and music. i grew up with the belief that the sun never set on the british empire. i collected stamps from all over the british empire. americans knew back then that george washington, john adams, benjamin frank and, nearly all
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the founding fathers were englishmen. alexander hamilton was scott. as they came so is later as with others from switzerland and all the countries, they came to the melting pot of america over the past 400 years. since the founding of jamestown. my parents took me to the world's fair in 1940. just seven years old. to see many of the country's exhibitions. among them for the first time i saw the magna carta at the british exhibition. the 1215 lincoln cathedral magna carta. on my first visit to britain as a serving officer in 1957, i was returning to america to be discharged after serving in korea. my two of duty had been completed.
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my first stay in london i went to the needs and to see two things. the magna carta and the rosetta stone. to me they represented the icons of a civilized society. the rules of law and communication. i became a trustee of the magna carta trust 21 years ago when i became the chairman of the pilgrim society. by charter the chairman is the master of the rolls and head of civil law and the u.k.. i have worked with six -- getting to the end of a cold -- and i now serve as the deputy chairman of the trust. as the longest-serving member, i was asked in 2010 to chair the commemoration committee. for me, this day is either or perhaps both the end of the beginning or the beginning of the end.
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but how could i refuse? that is why i am here. our speakers, each of them, is an expert in their field. as an audience, we believe in the rule of law. we believe in democracy, human rights, freedom of religion, due process but for the diplomacy that we believe in in soft power . main myths surrounding magna carta. it was only a fight between the barons and the kings and it did not affect the people. that it was a fake peace treaty. some were demystified in the excellent book published by the law were -- by the law library of congress and some of you may have helped in writing it.
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just one chapter. today the -- today we will take a look at the historical perspectives on the magna carta. that is why i am here. 38 years ago in its splendor, the house of commons and york that with senior members of the congress and the senate as they assembled in the 1000-year-old alice to be displayed in the rotunda of the congress, i was there then. that is why i am here now. one thing is not on the program today that i would like everyone here to consider as we are on capitol hill and on pennsylvania avenue.
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here am i, at this podium representing my two countries britain and america, who believe and act in the defense of liberty. i would argue that threats to shared values strengthen the special relationship that binds our countries. britain and america. president obama does as well, as has every president in my lifetime going back to frank d roosevelt. obama was observed in 2001 in a speech to the british parliament that are speech of -- that our process stems from our british forefathers. the president went on to say that our relationship is special because of the values and beliefs that have united our people throughout the ages. centuries ago when kings, emperors, and warlords reigned
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over the world, the english first spell out the rights and liberties of man in magna carta. i thank you. [applause] >> well, it is a great village to be part of this 800th anniversary celebration and enjoy the wonderful hospitality of the law library. thank you to you all for your hospitality. over the past three decades scholars have taught us a great deal about the history of bright stock in the history of the western tradition prior to the enlightenment's. we now know a great deal more about rights, liberties, capacities, and powers. we know cooler over intricate
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latticework of liberties with the ample expansion handing over the work from neo-scholastic journalist. we now know a good deal more about republican fear he's of their transformative influence on early lawyers and political revolutionaries of both sides of the atlantic. we now know in brief that the west new ample liberty before liberalism, before there were modern democratic revolutions. the magna carta was a critical early source of common-law rights and liberties. they were quite common in the middle ages, both in england and on the continent. but no one's charter prove more critical. this famous document, forged and
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ready-made had ample provision for early forms of criminal procedure protections, rights of marriage private property, inheritance, freedom of trade travel, commerce, freedom of the church and more. particularly prescient in words prototypical provisions on due process and rule of law. we read that no free man shall be taken imprisoned, outlawed banished, or in any way destroyed, nor will we proceed against or prosecute him except by the lawful judgment of his peers and of the land. again, tillman -- to no one will be deny the rights of justice. in the 14th century and early 15th century these came to be understood as due process rights. to be sure, it was no comprehensive modern statement particularly the fundamental
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rights of religion, speech, the press, and more, so central to the common law today only narrowly animated by the most progressive of medieval at. many of the other commonplace rights today are set forward in that universal declaration and are hardly configured at all. a number of historians are at work, mapping and measuring how we got from there to here. how this medieval seabed of rights and liberties eventually grew into the thick forest of human rights normal nests. this morning i would like to sketch in one small piece of this emerging map. namely the growth of rights in 17th century england in colonial america in the 17th century. a time when england, not unlike the early 13th century, prompted
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various groups to rise up and rebel against the king and demand greater rights and liberties. the 17th century was also a time when a massive wave of revolutionary fightings press not only for the restoration of the old magna carta but the creation of a new magna carta with many more rights and protections than its ancestor. while no new such magna carta was passed in england, the old one was given vibrant new life in the turbulent 17th century and many of the provocative rights and ideas advocated within gradually made their way into the anglo-american common-law. first and foremost, 17th century colonial america, which featured a number of striking rights documents. in 1640, the english world was turned upside down.
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for the first time in 11 years king charles the first called parliament into session and the members interrupted in unprecedented. against decades of royal abuses. the landed aristocracy and merchants had shaved under oppressive taxation, property confiscation, and strangulated tariffs. the clergy had suffered under harsh laws that drove religious nonconformists first away from their families and churches and then out of england altogether. much of the country had come to resent the increasingly belligerent enforcement of oppressive royal measures. finally, when called into session in 1640, parliamentary leaders seized power. civil war interrupted between the supporters of parliament in the monarchy. the parliamentary party prevailed and passed an act
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declaring and constituting the people of england to be a commonwealth free state. the commonwealth parliament abolished the kingship and king charles was convicted for treason and executed in 1649. they also abolished the aristocratic house of lords. equal in proportional representation was guaranteed in the election of local representatives. the church of england was firmly disestablished. this radical commonwealth experiment lasted only until 1660. most of its laws were reversed in that time. in a brief 20 years, with censorship laws temporarily relaxed, england saw an avalanche of new writings that would prove as she had for the
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eventual expansion of rights in the hands of the columnist. more than 22,000 pamphlets were published in england from 1640 to 1660. a number of them drafted beforehand, many more drafted over the course of these 20 years. many of them denouncing the purity of church and state and calling for more robust protections of the people's rights and liberties. many pointed first and foremost to the magna carta, with its guarantee that the church of england shall be free and have all of her rights and liberties inviolable and that all free men shall enjoy sundry rights and liberties. some of pamphlets advocated extending these fundamental guarantees to all peaceable churches, not just the church of england and to all english subjects, not just aristocratic freemen.
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john wilburn was an ardent champion of this view. he called the magna carta the birthright of every englishman. you wrote -- while i am a free man, i do have a right to the privileges that belong to the freemen and every great man of england. similarly, sir edward coke, the greatest english jurist of his day called the magna carta not just dusty indispensable foisted onto king john by behrens and ships, it was what he called the principal ground of the fundamental laws of england that neither king nor church, nor parliament, could breach. he famously declared that it was such a fellow that he will have no sovereign superior to him. beyond the magna carta pamphleteers pointed further to the petition of rights of 1628, which cook had also helped to
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shape. part of them pressed the document on a reluctant king charles in exchange for no new taxes. the petition included a number of new rights that would prove critical to the anglo-american my position. no horse plume from the people. note taking of a man's life or liberty. orlando. no imprisonment or disinherited -- disk inheritance without suspension of law. no prosecution for non-statutorily enacted crimes. no use of martial law against english subject or even the most dire emergencies. all of these rights and liberties the petition declared were to be maintained and enforced according to the laws in statutes of the realm without
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prejudice to the people of other parliament. given that royal abuses continued apace after the right of 1628, various pamphleteers called for further and stronger rights documents. magna carta, wrote william waldman, has through its repeated uses become a bludgeoned book. we need a new magna carta, one that provides sturdier safeguards against the tyranny of the church in the commonwealth alike. he joined forces with others to draft such a new magna carta which they entitled -- an agreement of the few people of england -- published in 1649. it really was a proposed new written constitution for england focused first and foremost on government calling for the representative government with
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carefully enumerated and eliminated executive and judicial powers. the agreement also took great pains to enumerate the people's rights. it took on all the rights of the magna carta and other rights provisions as well as, which would become fundamental to later common-law traditions. the agreement had strong new religious freedom guarantees. freedom of conscience and exercise. freedom from compulsory piping. freedom to elect and reject clergy. the agreement also called for robust freedoms of speaking, writing, printing, publishing. the freedom of speech just set out in 1644.
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in addition to freedom of religion and speech, the agreement elaborated several additional criminal procedural guarantees. a guarantee against the programs of self determination confronting witnesses in one's own criminal defense. the right to jury trial in all criminal cases. capital punishment for rape felonies. working equal to the prescribed and proscribed defense, without imprisonment for private debts. elsewhere the authors of the agreement called for the just, speedy, plane, and unburden some resolution of cases without pretrial action without a warrant. here in 1649 they set out
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virtually every criminal procedural right that would appear one and a half years later in the bill of rights. finally, the agreement protected rights of commerce, business and private property, including guarantees of tax index sized free trade, as well as freedom from government-sponsored is this monopolies. for baiting -- forbidding government actions that would destroy property or make all things common. the mid-17th century english pamphleteers press these and other rights claims not merely as positive rights created by the state, but as fundamental or natural rights created by god and deserving of constitutional confirmation, protection, and implementation. as richard overton, one of the co-authors of the 1649 agreement but it -- by natural birth all
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men are equally born to property, liberty, and freedom delivered by god into the hand of nature in this world everyone with a natural innate freedom never to be alliterative. everyone alike able to enjoy his birthright and privilege. they and many other english writers of the time defended these natural and fundamental rights on various grounds. some of them introduced the common ideas of the day, the person works for the king with natural rights and duties to speak and preach at the room and community. others deduce the 10 commandments of the hebrew -- hebrew bible to honor, worship and profit. second table rights and duties concerned marriage, households,
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life, property, and reputation. others turned to medieval use precedence to defend all manner of public and private rights. the idea of radical rights set out in this proposed magna carta and in many other pamphlets of the middle of the century proved far too radical and adventuresome for the english common law of the day. this document and many like it were consigned to the flames. many of their authors were pilloried, punished, banished, and a few of them killed. nonetheless, this short bursts, these short explosions of expansive right in the middle of the 17th century set an enormous totem for later generations of lawyers to make it ever more
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real. it was only through generations later that some of these ideas informed the english bill of rights and tolerance act of 1969 -- 1869 with more of them entering slowly as statutes over the next three centuries. the new rights took centuries to develop in england and they took only a few years to develop an colonial america. english royal charters at first constituted many of the american colonies in gave the settlers of broad latitude to conceive of and create their own ideal policies. 17th century charters imposed no real establishment of a new world and rather few restrictions on the young colonies. colonists were free to develop their own structures to elect most of their own if not all of their own magistrates, testing
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their own laws providing they were not repugnant to england and those free and natural suspect -- subjects. first companies use this to create something of a haven for european and english dissenters as well as a laboratory to try out some of the most adventuresome rights ideas that had just been discussed in england and on the continent. many of the colonists introduced their own experiments in religious liberty upon arrival, incorporating some of the radical ideas we just heard. providence plantation, for example, was established by the words of its founder as a lively experiment for complete liberty and religious and civil concerns. later rhode island colonies had remarkably progressive policies of protecting liberty
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conscience, and the exercise of a guarantee against the establishment of christianity which in particular became a model for various religious liberty advocates of the century. it was an experiment of remarkable catholic and protestant coexistence providing that no person professing to believe in jesus christ shall henceforth be anyways troubled for his or her religion, nor by the free exercise thereof or in any way compelled to believe or exercise any religion against his or her consent. equally inspirational and controversial, william penn's holy experiment in religious liberty instituted in pennsylvania in 1682, which had
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comparable guarantees. colonial america was a laboratory for next airman's not only in religious liberty, but also in a number of other basic rights and liberties. indeed more than one century before the american revolution state and constitutional conventions set to work fastening these instruments that are so famous today. colonists had already forged their own bill of rights, which they set out in some detail. there are many examples from the 17th century, as my distinguished co-panelists will elaborate on in a few moments. but let me focus on a surprisingly early one. the body of liberty that emerged in massachusetts a in 1641 and came to be styled as a new
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american magna carta. massachusetts was hardly known for its day as a haven for liberty. it was a bastion of your theocracy. the hanging of quakers across the common. of the prosecution and punishment of which is in neighboring salem. nonetheless, this reported puritans the acre city passed in 1641 their new magna carta. just a decade after the arrival of the newest colonists in modern-day boston. incorporating not only the rights and guarantees of the magna carta in england, but also many of the most daring rights proposals gathered from the pamphleteers in england and those writing since the 15 50's. it made its own surprising innovations as well.
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the body of liberties was drafted by nathaniel ward, a distinguished heidelberg trained calvinist minister and cambridge trained lawyer who had come to new england in 1634 with 10 years of legal experience as a barrister. in his trunk he had a copy of edward cooke's institutes of english law, john calvin on the english religion, and a huge pile of these others that i have been talking about. the value of liberties as drafted with 20 59 by 12 inch pages honored provide a detailed recitation of what lord called basic elemental and essential rights needed to be obtained in the massachusetts bay colony. the preamble makes it clear that the massachusetts colonists regarded the protection of
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rights and liberties to be essential to the peace and stability of church, state, and society alike, opening with strong guarantees of the right of life, liberty, reputation using language that self-consciously elaborated the prototypical due process clause of the magna carta. what do we read? no man's life should be taken away, no man's honor stained, no one banished, dismembered, or otherwise punished, no man deprived of wife or children food worst they taken away or in any way damaging authority or the color of the law unless it is by virtue or equity of some express law of the country wanting the same, established by a general court, sufficiently published and discernible. the body of liberty flashed out these basic guarantees with a number of criminal procedure
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rights and protections. we have heard some of the familiar things and new things, too. all persons are guaranteed the right to enjoy the same justice and equal execution of the law. parties can be charged only for crimes explicitly set out in the statute. grand jury's are to be used for preliminary findings in the night. defendants have a right to a hearing before an impartial judge. a right to us -- speedy trial. they are guaranteed the public against self-incrimination. they cannot be subject to double jeopardy. official case records will be kept in the open to the parties. the courts ensure that there was no double jeopardy. proof is required to clear and convincing evidence. a defendant cannot be tortured to collect evidence against
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himself nor subject to inhumane elaborate, or cruel punishment. the body of liberty also set up private procedural rights, as they were called. parties collect proceedings for bench or jury trials in which jurors were selected from the electorate and could be challenged to give verdicts only upon clear and safe presentations of evidence. parties could appear to representatives, sue for damages or equity relief counterclaim third parties intervening as needed, compelled to testify at the judge's discretion, if they wished, and the parties could claim the right to a homestead exemption. bodies of liberties included strong guarantees of private property rights, contracts
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holding inalienable private properties without government interference. there were fishing, harvesting hunting and public work rights with any property taken needed in to be duly compensated for thereafter with special provisions given to women, children, and servants rejecting the laws of the traditional common-law overruling without interference. every married woman shall be free from bodily correction or strikes by her husband with special procedural protections. widows can seek redress if the states are not large enough. children were freed from the natural severity of their fathers. they could be checked and ultimately it adventures could be canceled in the event of undue severity. even domestic animals have rights. no man shall exercise cruelty
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towards any group of creatures use for man's use, and in those events that species should be set free or given to a more benevolent neighbor. the body of liberties set forth a number of public in civil rights, for standing for office, for participating in public referendum on fundamental issues of laws and morality, the right to appear and speak at town and congregational meetings, the right to move in the petition for redress and freedom to search records, freedom of information as it comes to be called. three more minutes, if i may mr. chief librarian. a 1641 body of liberties was a remarkably detailed list and expansive discussion of public-private penal and procedural rights and liberties. it was all the more remarkable in that it was drawn up for a
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young, scattered community of 15,000 souls for whom mere survival for a second decade of severe winters, pestilence, and native american invasions were still their most pressing concerns. the body of liberties were duplicated in a number of other new england colonies. became something of an anchor text for the 1780 massachusetts constitution, the oldest in the world and certainly the oldest in the west. john adams singled out this body of liberties as a pressing document in his understanding of the defense of the constitution's of the united states. a massive body of work defending american constitutionalism. nathaniel ward, the main author of the body liberties, pretended that this was just a little
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assemblage of english laws as he understood them, but he was deprecating the novelty and the sweep of his formulations. what was new in colonial new england was to have all of these different, scattered traditional common-law rights of england with many new rights beside. compelled into a single source generally available to the community, regardless of the court in which they appeared generally binding on all parties. citizen and official alike. nothing like that existed in english common law of the day, with its is an team conflicts of written procedures. what was also new in colonial new england compared to old england was to have this body of liberties serve as something of a written constitutional text that gave preemptory instruction to government authorities that
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limited the law and gave from it standing colonial citizens to press claims and vindicate their rights abuses before the court. here was a matrix for the creation of the understanding of judicial review. we have in the colonial peace law thereafter evidence of that judicial review in action, going inevitably like every law in action it was blatantly breached , especially in the hands of some early leaders. most novel was their ability to build this set of rights on a covenant framework, rooted in understandings of covenant relationships between neighbors and god predicated on countless formulations of covenant politics, standing out in their theories of law, many of the
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basic ideas of a contract carry on logic in general terms rather than theological terms of the 17th century. thank you for your kind attention. [applause] >> good morning. thank you very much for inviting me to be here. it is a great pleasure. you just heard about many of the original rights that were added in the new world. my essay here is entitled -- magna carta entrenched, the legacy in america. while i will be speaking about the transition and attitudes of these rights in america it
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struck me, as most would agree that the magna carta is far more important in the land where it was assigned. i was particularly struck in 2005, where i wrote a brief -- brief essay for british online journal called farewell to magna carta. parliament was passing a prevention of terrorism bill and there was a great deal of upset over the enhanced police rights the long detentions, and one of the leading journalist wrote for the guardian and the bbc. they were so upset they wrote -- where can liberty turn? he looked to the house of lords for help.
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the house of lords had been successively gutted of its powers sometime ago. well they did not rise as well as they could and they added amendments to soften the burden. he was particularly concerned about this detention and he was excited by how people were entitled to the loss of the judgment of their peers. less than one month earlier they had written an essay about juries in which the evidence was clear. of course, those things could be done by parliament. next? unlike the congress, they can release the rights and change the constitution with a simple majority.
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they abolished the hereditary house of lords to which simon was appealing. there was an appointed house of lords with some hereditary lords grandfathered in. the house of lords is not what it had been. for those of us concerned about the rule of law, in 2003 they abolished double jeopardy. it was just supposed to be for murder. but they added some 20 other crimes. including not only murder, but drug trafficking and other crimes. you could always be brought back and tried again if there was new evidence. evidence was to be due decided
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by the prosecutor. they also reduce the number of jury trials. that's a great contrast of course with the night in a qaeda and its rights have been entrenched in state federal constitutions. it has been and batted in the statute books of 27 states. it has also been incorporated in the constitution, and the due process chapter that says note product -- person should be deprived of life, liberty, or due process without law.
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five more were that provision limited to the accused in criminal prosecutions. all of these are in the state constitutions as a guarantee. what i would like to do now is give you a brief history colonial history of this transition. and also the evolution and england of the power of parliament and the american take on that. i am particularly curious on how we parted ways and highly got so far removed from the british tradition. the colonists, as you have just heard, came to this country with a lot of the very strong and passionate feelings from 17th century writers and the english civil war about the rights of individuals. one of the chief writers who is very influential was sir edward
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coke. cooks writings where read by many of our founders like jefferson and adams, and john marshall. he said the magna carta was the fountain of all the fundamental rights for freemen. he also talked about how judgment against any of the points of the act that carter -- magna carter are void. there is your tradition of judicial review. later on in the institute, he did say, but, parliament cannot be for causes are persons within any bounds. but the founders particularly focused on his accord of magna carter and the statutes that were made against him and the
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threat that parliament could do whatever it wanted. in 1610 coke wrote, it appears in our statute books and in many cases, the common law of control acts as parliament and sometimes they are utterly void. they are repugnant or impossible to be performed, then, will perform it. the charter rights that the founders received -- excuse me this is my first powerpoint. the charter rights, beginning with james the first in 16 ethics and virginia writes, are guaranteed to those people who will be settling, they and their children that have all the liberties franchises and --
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abiding and born within the realm of england. they must have been rather dismayed at the people who came here where. they were very much concerned about maintaining those rights. in massachusetts bay, they issued a document comparing magna carta article by article to the constitution of massachusetts. maryland, massachusetts, and new england hashed statutes or common law. particularly the one based on what were articles 39 and 40 of the 1215 edition of the magna carta, about no freemen being taken of their liberties.
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to none lowly cell to nunnally delay right or justice. william penn in 1687 published the entire text of magna carta printed in the western haven't -- hemisphere. for residents of pennsylvania. every freeborn subject of england is aired unto by birthright. unparalleled privilege of liberty and -- liberty. he said, it is signed most conspicuously into things, parliament and juries. as i said, the people who came
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were extremely litigious. one of my favorite examples is massachusetts. in 1664, a massachusetts play assembly wrote a letter to their sovereign taking issues with a royal commission the accused a new england colonies of passing laws republic -- repugnant. other new england colonies -- massachusetts reminded charles the first that their charter written by him to earlier -- two years earlier, that only the absolute use of property of the tract of land, but also full and absolute power governing all the people of this place, i then chosen by themselves according
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to such laws as they shall from time to time see that being not repugnant to the laws of england. according to their charter they were to pay only the fifth part of the ore of gold and silver. i don't know that anyone has ever found and outs of gold or silver -- #of gold are similar in massachusetts. they said we are like to be subjected to the arbitrary power of strangers not by established lobby by their own distribution. if these things go out, their subjects here will either be forced to seek new dwelling our sink under the burdens that will be intolerable. the crown officials finally yielded. they withdrew the commission. the massachusetts assembly refused even to answer the charges.
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so they sent the wrong people to this country if they expected some kind of obedience to parliament. under the dominion of new england of 1687 with james the second trying to cobble the new england colonies together under a governor and council, there was a protest in ipswich. because of the tax that was being imposed upon them without him consulting the assembly. some of the ipswich members including one of the ministers sued for habeas corpus. about five of them were playing risen. the judge told them -- put in prison. the judge told them not to let the love follow them to the end of the worth, that the only privilege they had was not to be sold as a slave.
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massachusetts assembly shifted their case to their own supreme judicial court and empowered that court to exercise powers comparable to those to the court left minister, two grandes people habeas corpus. unfortunately, james left in 1688, and the dominion of new england was no more. we are also familiar with the various protests against regulations from brennan -- britain. the rest of the assistance which inspired jeans otis to assign his career as a british official and represent 60 odd merchants had in fact been in operation in britain for some time. while there were treatises written against it, there had been upset the same way there was in massachusetts. the tea tax that would be so
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provocative, was observed and paid in britain. we are all familiar with the stamp act. in braintree massachusetts they were concerned not only about the lack of it being passed in a parliament in which they had no representation, but the loss of jury trials -- local jury trials, or admiral trials which would be before a judge. there are a couple of cases i would like to mention that may be less familiar. when is the hancock case. many of you probably know john hancock, the famous founder of the continental congress, was also a smuggler. [laughter] he was arrested and jailed for
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failing to obtain a permit to unload a cargo of his ship, the liberty. john adams rose to the occasion and defended him. this gives you an example of what hancock and other smugglers were up against. his ship was seized and it was condemned in august. sold in september, along with the cargo. that wasn't good enough for the british governments, in october the court sued him for the enormous son -- some of 9000 pounds. adams represented henan argued that in addition, that hancock would have to appear before an admiralty court in london, would be repealing magna carta as far as the rights of the magna carta -- americans are concerned. not only would it reduce hancock below the rank of an englishman,
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the government decided to drop the case. our founder went free as it were. of course, his ship and cargo had been seized. the americans felt very strongly that their rights needed to be beyond the seizure of the british government. massachusetts would have its charter revoked if all -- the only rights you had were those in the charters, then you are always very vulnerable. the idea that rights were to be in alienable, that they were part of you as a human being and natural rights were important--so the source of the magna carta rights had to be natural rights confirmed, and this was reiterated time and again by people here. of course when thomas jefferson
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pans the declaration of independence, he mentions that these rights that people are entitled to, were endowed by their creator with certain in alienable rights. the us are not writes anyone can take away from you. they are not given to you by the king, which is the one who had signed these charters. the state constitutions that were drafted--i'm sorry. there is one other episode i wanted to mention. that is the 7072 -- 1772 burning of gas. this will give you another sense of how important it was that people had local juries and in fact, local juries for americans were willing to arrest or
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condemn people like hancock. but it burning was probably less known that gives you a sense of how united the country was. the british had these man-of-war's and ships patrolling the new england coast which was perfect for smuggling because it is so irregular. this was one of these chips, -- ships, and a local sleuth lured the ship into shallow waters off of rhode island where it got grounded. at that point, people who described as patriots rode out to the ship and took the captain and crew prisoner. they brought them back to pawtucket, which still commemorates the joy of having these people in their prison. the british had thoughtfully passed something called a dockyard act, which meant
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burning the king's ships, you would be charged with treason. just before dawn, it went up in flames and no one knew how. since was somewhat a waste of time to get a local jury to find out what happened and condemn anybody, the government or special commission, of all the chief justices of the new england colonies along with new jersey and new york, these people were to inquire into what had happened and find out who should be convicted. or at least charged and brought to trial. on the charge of treason. in fact, no one gave them any evidence whatsoever. finally it was the chief
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justice of rhode island who said, since we can't get any evidence and we don't know it happened we have to drop the case. and they did. the british government were really up against a fairly united or at least intimidated group of people. intimidated by their five-year neighbors, not -- feist year neighbors not to come forward. i think timing is everything. at the time that the colonies were going through these idle throws the for the revolution they were still relying on cook for their rights. but blackstone was writing his first volume of commentaries of the laws of england.
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blackstone thought very highly of magna carta. that it preserved rights it did not predate them, that the rights of individuals were invested by the immutable laws of nature, which americans certainly agree with. assembly is a degree of tyranny. blackstone is the most frequently cited european expert that the finders -- founders relied on. but, by the time that american revolution had come, policy was more sovereign. blackstone wrote that policy can do anything that is not naturally impossible. they used to say parliament can do anything that can make -- except make a man and woman.
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--a woman. even blackstone, by the final edition of his work, became a little worried about the fact that all of those rights could be overwritten by parliament. he put in a little kind of waiver of the clause, he says that if parliament will positively enact a thing to be done that is unreasonable, of no power in the ordinary part of the constitution vested with authority to control, so the lift -- he left a little wiggle room. this was obviously not going to be anything that the americans could rely on. they like blackstone but not that part of it. some of the new state constitutions that were drafted in 1776 after the declaration of
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independence, particularly exempted from the power of their legislatures, the right to alter any of the rights in the constitution. selling in delaware, it says after seeing that the legislature will preserve the rights and can legislate, they put a clause that they cannot pass laws repugnant to the rights and privileges in the constitution and the declaration of rights. new jersey has something very similar. and a new constitution, the legislature could pass no law's republic -- repugnant to the rights in this charter. and the right to trial by jury shall remain as a part of the law without repeal forever. george also had a preamble which claims citizens the rights to privileges they are entitled by the laws of nature and reason. this included several articles with a pledge in the english
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bill of rights for excessive fines the rights to habeas corpus, and trial by jury. the u.s. constitution has an vetted rights within the body of the constitution, the right to habeas corpus, and of course the bill of rights amended to the constitution. in contrast to parliament, it is very difficult to actually amend the united states constitution. no simple majority vote of the house of parliament -- of the congress with the president can alter any of our rights. i think that has made a great difference. the british trusted in parliament, in their view, and it is a rational choice. they feel they must defer to the
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democratic branch. we have embedded these rights from magna carta in our constitution and made it very very difficult for anybody, or even our legislature to make any change. in closing, i would like to cite the author of the federal farmer during the debate over the american constitution in 16 88, where he explains our freedom depends on keeping in view this legacy of magna carta. he writes, the people might not forget these rights, and gradually become prepared for arbitrary government, they are discerning and honest leaders causes instrument to be confirmed near 40 times. to be read twice the year in public places. not that it would lose its aridity, without some confirmation but the contents
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of and the minds of the people, as they successively, upon the stage. then in some countries do not remain free merely because they entitled to natural rights, men of all countries are entitled to them. not because their ancestors once got together and enumerated them on paper, but because i repeated , negotiations and declarations, all parties are brought to realize them. of course to believe them to be sacred. i might show the wisdom of our past conduct as a people, and not merely purported and comforting ourselves that we were entitled to freedom, but constantly keeping in view and addresses and bills of rights and newspapers etc., that particular principles on which our freedom always depends. winky. -- thank you. [applause]
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>> my topic today is not that carter and trial by jury in the new republic. -- magna carta and trial by jury in the new republic. i studied the legal systems of england, the colonies, and the united states. rules about civil and criminal procedure, lawyers, juries, and judges. is a great pleasure to be here with other historians and scholars at the library of congress. in return for this, i promise not to get into the technical details of pleading trespass to the case. i became interested in this topic because of bafflement. i was studying the scope of jury trial in the new republic and i didn't understand language indicates i was reading.
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the case was versus the city of charleston. the south carolina supreme court delivered the opinion in 1794. the hapless zilsta not only had a interesting name, but had been keeping a candle shop. this vitally needed -- violated a city ordinance because charleston has a hot climate. beef hallow --tallow smells a lot. my husband can attest to this because i make beef bone broth every week. every week he complains about the smell. those of you who have adopted a paleo diet understand. he was charged in a municipal chart -- court and find 100 pounds. he then complained to the
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supreme court of south carolina that he had a right to jury trial. his counsel argued vigorously that he was entitled to dns civil trial by jury, the birthright of every citizen pickard -- procured to him by magna carta. wait a minute, i thought. what is magna carta got to do with this argument? is this just the overblown rhetoric of lawyers? not entirely, it turned out. the south carolina constitution of 1790, like those of most other states in the new republic, contained the following language. no freemen of this state shall in any manner be deprived of life, liberty, or property, but by the judgment of his peers or the law of the land. we have heard already from the two previous speakers, the language of article 29 of magna
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carta in the 1225 reissuance, no freemen shall be taken or imprisoned or deceived of any free tenant or have his liberties are free customs or outlawed or at flawed -- exam of, or destroyed, nor will be go upon him except by the lawful judgment of his peers or the law of the land. in other words, the majority of states have set the language of article 29 translated directly into their constitutions. but a further surprise awaited me. that was language the judge used in describing the tree trial. he wrote, a traveler jury is a
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common lot rights, not the creature of the constitution. it is in every individual citizen, the title to which commences long before the political existence of this society. which has been held and used by our ancestors in succession from that. -- era, to our own time. needless to say, he got a jury trial. but what is going on here i wondered. had the judge last his mind? he had a constitution in front of him that was only four years old. why was he talking about time and in more able -- memorial, by our ancestors, what could he mean russian mark --?
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i got a sense that he was referring to a developed strand of thought. if i wanted to understand ideas about the jury in the new republic. that began our audit into magna carta. or to be more precise, into that lots of england of which magna carta was the premier example. where to begin -- ideas about magna carta and jury trials have changed quite a bit. as it turns out they couldn't guarantee trilobite common lot by jury. jury trials by -- did not exist. only for certain types of civil cases.
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this meant no one could be tried by his inferiors. the barons therefore, that they should be tried by each other. a concept that survived in the trial of peers in the house of lords. the barons did not consider royal judgment to be their peers, much less the common folk that made up ordinary juries. up ordinary juries. in the 14th century, new understandings of article 29 arose that encouraged a future link to common trial by law jury. the 14th century was again the time of great conflict between the crown and the nobility. parliament enacted a series of statues that were later much celebrated that referred to magna carta and confirmed that a trial following lawful procedures should take place before a judgment.
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several of these 14th century statutes used a phrase we've heard about from both of our previous two due process of law. which thus became deeply associated with magna carta. the words due process of law do not occur in magna carta. it comes from the 14th century statutes. getting in the tutor period and the 17th century, english writers explicitly linked the phrase "judgment of his peers" in magna carta to common law jury trial. they described this right as an ancient inheritance. the first person to make this link in print appears to have been william lambard in 1581. lambart importantly was an aquarium of anglosaxon law. he was interested in tracing the ancient constitution of england in many cases, back to the
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anglo-saxons. it was found in the libraries of thomas jefferson and george whit, among others. during the constitutional struggles of the 17th century. edward cook, a name we've heard about from our previous two speakers, was happy to imbellish this theme of linking magna carta at jury trial. this link aided cook's quest in his later career to strengthen the common law courts and to limit chancery and the other prerogative courts. the prerogative courts sat without juries and were more directly subject to royal control. cook extensively discussed article 29 of magna carta in his second institute, a source well known to americans, as we've heard. cook was the most influential exponent of the idea of an english inheritance based on dissent and consisting of fundamental law. in cook's view, this inheritance
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was unchanging and from time in memorial. it preceded the norman conquest and in georgia cook's day. according to the fundamental laws expressed in magna carta and other sources, the king could not take property from his subjects or imprison them without due process of law. the law of the land specified what process was due and its most important component was the common law of england. so we can now start to see the origin of judge waity's ideas in south carolina in the 1790s. a difficult was that english in england and english in america held different views about the extent of the fundamental laws, including common law outside of england england. he himself did not believe they applied outside of england. flagstone certainly did not. he wrote in his commentaries
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that they had control over the oversea colonies, because these lands were conkered. the english in america in contrast insisted that our lands were settled, not conquered. the existing populations had died in large numbers because of old world diseases and the remainder had fled or were assimilated eventually. colonial charters, furthermore, purported to give english settlers in the colonys and their descendants the full rights of english men, as if they had been abiding and born in the realm of england. the american insistence on their rights as english men is something that is important for us to understand. it's often overlooked in contemporary education. but unlike many things that are overlooked in contemporary education, it's been overlooked for some time, because of the desire to assimilate immigrants from other countries and because
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of the forageing of an independent american identity. the theory we proclaimed today is that the united states as a nation founded on universal principles, not on blood. many american colonists and revolutionaries have a different view. they have rights and inheritance based on their blood. they persuaded their rights as english men with the universal rights as man. at every opportunity in proclaiming their liberties, they harped on the ancestors and their descendants. you see these words over and over again in statements of american liberty, fathers, children, posterity and so on. for the most part, they did not mean spiritual ancestors or descendants. they meant flesh and blood. the transformation from a blood decent to spiritual descent came later. abraham lincoln translated that
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in a speech on independence day in chicago in 1858, drawing on the words of the declaration of independence. back in the 18th century like edward coke, many americans believe the colonists were unchanging in ancient times, from time in the memorial. no king or parliaments could alter this birth right of the english people. the body of this inheritance was, as coke had explained, the fundamental laws of england especially as expressed in magna carta. as we've heard already this morning, to an astonishing extent, the american colonists enacted the passages from the magna carta. thomas jefferson's views about the in memorial english constitution were wide spread among educated colonists and helped explain devotion to magna
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carta. jefferson follows the declaration of the universal rights of man and the declaration of independence. had it arrived early and energetically, the idea that english constitution and common law were legacies of the anglo-saxons. second to this common law was a primitive democracy, supposedly embodied in such free institutions as the folk moot, and trial by jury. never mind that the normans, in fact introduced trial by jury. jefferson was so enamored of the anglo-saxons, in 1776, he proposed an initial seal for the united states showing the figures of tangus and horsa. who are those characters, you might wonder? okay, there they are. these were two german chiefs, possibly legendary, who were allegedly brothers and among the
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first anglo-saxon invaders of britain in the fifth century. tangus means stallion in anglo-saxon and horsa means horse. so this is a family evidently with an equine obsession. you see in the bottom right there, the picture of a horse banner. free germans carrying the horse banner there. and interestingly, to show you the link with the mythical past you see horse-padded gables like this on farm houses throughout northern germany, the netherlands, and scandinavia. in other words, the places where the anglo-saxon were from. this carries a myth about divine twins, probably horse-shaped. and through the late 19th century and germany, these gables were known as hangust and
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horse. so we are deep into ancestral mythology here. jefferson describes them as the saxon chiefs, from whom we claim the honor of being descended and whose political principles and form of government we have assumed. in the wig story of champion by jefferson, the depraved normans, were the evil-doers. the french-speaking normans imposed futeileism and temporarily deformed the rights of english men. magna carta restored these ancient rights. the battles of the 17th century were further examples of the english asserting their rights against tyrants. americans saw themselves in a continuation of this struggle to preserve the ancient rights of english men against usurpers. as tensions built between the north atlantic colonies and
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britain, american invocation of magna carta became more aggressive. this is a $4 bill printed in maryland in 1775. my children were very interested in the idea of a $4 bill. they wanted one. not sure it would still be legal tender today. we'll take a closer look at it. i hope, there we are. this shows the figure of liberty on the -- right there. as she's holding a pole with a cap on it, typical symbolism, and she is standing on the word slavery underneath her there. and she's backed by american troops carrying the banner of liberty. you might be able to see the
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l-i-b on there. it's handing it to britainia in the middle with a shield and spear. britain though is restrained by king george iii, the large figure on the left who is known trampling magna carta. so basically standing on m.cart astanding for magna carta. and for good measure, king george is setting fire to the port of annapolis. [laughing]. many americans claimed, therefore, they had an inheritance and were not giving up without a fight. for americans, the jury was not only part of their ancient inheritance as english men protected by magna carta or so they thought, but the jury had proved very useful during the colonial period in the conflict with the british government, and
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you've heard about this from professor malcom already. at the heart of the american fervor about the jury, was the institution's ability to nullify unpopular laws. on the criminal side, one of the most prominent examples was the acquittal of john peter zainger in 1736. in his trial, judicious liable of the cloenl governor of network. american juries refused to indict that the law became essentially a dead letter in the colonies. in contrast to england, where there were a number of successful judicious processes for civil liable. to nullify the customs laws against custom tax collectors. i'm surprised john hancock didn't think of that. maybe he tried without success.
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this exasperated british officials. he complained in 1761 that a customs house officer have no place with the jury, let it cause be what it will. he warned his superiors in london that they overturned the judgments of the courts of admir alty, which sat without juries. another colonial governor of massachusetts wrote that, a trial by jury here is only trying one illicite trader by his fellows, or at least his well wishers. colonists viewed the jurisdiction of the jury was admiral to courts of a major grievance. they repeatedly complained about the curtailments of the right to jury trial, and in particular, in the stamp act congress of 1765 and the declaration of independence a decade later. the british government in the view of many americans was depriving them of their birth right to trial by jury and magna
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carta and thus prevented them from nullifying the hated customs laws, and this view accounts for the immediate insertion of the language into the magna carta into these new state constitutions. again, it took place as early as that, as soon as the state constitutions were written, the majority of them put that language right into them. here was the difficulty. once the republican government took power, hour, jury nullification became deeply problematic. the people now had a say in the making of law. they had consented to them. why should 12 citizens have the power to nullify laws enacted by a legislature elected by the entire people? furthermore, legislatures followed a process for enacting laws carefully specified in a written constitution, itself ratified by the people. at the time the federal
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constitution was drafted in 1787, the federalists began to express publicly doubts about the civil jury. anti-federalists such as patrick henry of virginia, argued strenuously in favor of it. the specific issue that henry called attention to was the civil jury's ability to nullify debts. debtors were a powerful political force soon after the revolution. state legislatures passed laws that made it easier for debtors to receive creditors' demands. in addition, state juries wereicisma awere sichl wereicismwere sympathetic to debtors. not a popular group at the time. anti-federalists protested the lack of a civil jury right in the federal constitution. they were afraid that debtors would be hauled into federal court and made to pay their debts. the anti-federalists succeeded
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in persuading a reluctant james madison to draft the bill of rights, including a right to jury civil rite trial in the seventh amendment. in drafting the seventh amendment, madison studified the civil jury. he argued against the need for a civil jury right, directly opposing patrick henry. madison, therefore, decided to make no direct reference to magna carta in the seventh amendment. the federalist's concerns about the jury pre-staged the attitudes of many lawyers and judges in the united states. politicians and judges continued and continue to praise the jury in extravagant terms and to exalt magna carta as the guarantee of this liberty. year by year, however, they willed the jury away. this erosion was especially true of the civil jury. at the founding, the jury had been a political institution, as
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tuckville famously described it. in the 19th century, however many americans in all areas wanted predictable, uniform legal rules that would help promote commercial development. use of civil juries could lead to unlawful, unpredictable results that undermind the authorities of legislatures and courts and thwarted the ability to carry out plans and actions. besides, the expense and inconvenience of jury trial is great. and one of the most surprising things about reading state constitutional conventions in the early 19th century was how often delegates complained about the jurors having to spend their time listening to their neighbors complain. the jury began to be rewarded more of a judicial institution than a political one and as a judicial institution, the jury fell short. we see the shift in attitudes in
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opinion of the jury in the federal courts. as we saw previously, the south carolina supreme court in 1974 in the zilstra case allotted magna carta and a jury trial. as the public matured, however, courts dropped the language of ancestors and rights from time in memorial and focused on efficiency and adjudication. the 1819 opinion of the u.s. supreme court and bank of columbia vs. oakly, is a good example of a new emphasis on efficiency. that case confirmed a summary proceeding by a bank against a debtor. the debtor complained that he was being deprived of his right to jury trial under the maryland constitution. the maryland constitution was one of those that directly incorporated the language of magna carta, article 29. justice william johnson wrote the opinion and as it happened, he was a native of charleston. he took a different attitude
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towards the magna carta than his fellow south carolinian thomas waity. in his opinion to the court, justice johnson wasted no time in full use and praise of the charter. his tone suggested impatience with what he called, the volume spoken and written with a huge juxtaposition. justice johnson declared that the good sense of man kind had arrived at the idea that they were intend to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice. after this announcement, justice johnson explained to make his note negotiable at the bank and, therefore, he had waived the right to jury trial.
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by the mid-19th century in both england and america, the powers of the civil jury were increasingly curtailed. the jury went from being described as a secret palladium, as blackstone had called it, to a figure of fun. the magazine "punch" got in on the act, seldom missing the opportunity, and published a book called the common black stone by gilbert elbecket in 1846. the most common passage and singled out for admiration in the united states was a satire on blackstone's chapter on the civil jury. he referred to the ancient inheritance of english men. the trial by jury is, of course a subject that every true-born britain with a quarter of a pint of saxon blood in his veins, is prepared to revel in. becket went on to assume that the jurors were irrelevant to counsel and they sometimes
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flipped a coin to decide cases. the story of a jury moving from an ancient right of the people to a nuisance suggest the difficulties of constitutionalizing specific procedural rights. legal systems, economies, and politics can change, changing in turn, the need or the desire for a particular procedure. the idea of the jury as a right of english men from time and memorial, was a fiction, a myth. the criminal jury was unknown in 1215, and the barons insisted that the common law jury did not apply to them in the most important civil cases. the notion of a jury as an ancient civil right suited his prerogative in the 17th century and suited americans in their struggle against british control in the 18th century. after these were over, it seemed
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to be a liability. the justice system needed new procedures that were more efficient for commercial societies. the more enduring legacy of magna carta is the one that justice william johnson pointed to in bank of columbia versus oakley. the idea that the individual should be secure from the arbitrary exercise of the powers of government. thank you. mrauz. [applause] >> you're watching american history tv. 48 hours of programming on american history every weekend on c-span 3. follow us on twitter at c-span history for information on our schedule, upcoming programs, and to keep up with the latest history news. tuesday night, president obama delivers his state of the union address, live coverage begins at 8:00 p.m. eastern, including the president's

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